(concurring in the result):
The Coast Guard Court of Military Review concluded from its reading of United States v. Ohrt, 28 MJ 301 (CMA 1989), and United States v. Gunter, 29 MJ 140 (CMA 1989), that, “notwithstanding the apparent authority of RCM 1001(b)(5),” Manual for Courts-Martial, United States, 1984, “the government may not call an accused’s commanding officer at the sentencing stage of trial to testify that an accused lacks rehabilitative potential, unless it is in rebuttal to matters presented by the defense.” 29 MJ 667, 668 (1989). Although I find no assertion to this effect in either Ohrt or Gunter, I believe the court below reached a correct conclusion.
The language of RCM 1001(b)(5) — which was promulgated by the President in the exercise of his powers under Article 36 of the Uniform Code of Military Justice, 10 USC § 836 — gives the Government the right to offer “evidence, in the form of opinions concerning the accused’s previous performance as a servicemember and potential for rehabilitation.” The location of this provision would seem to indicate that the offering of such evidence was not limited to purposes of rebuttal — which is treated separately in RCM 1001(d).
Although the Drafters’ Analysis of RCM 1001(b)(5) is meager, Manual, supra at A21-64 (Change 3), it is clear that reference of the rule to “potential for rehabilitation” should be translated to read “lack of potential for rehabilitation.” No one can imagine a prosecutor presenting testimony that the accused has an excellent potential for rehabilitation.
The difficulty that I have with testimony like that offered by the Government in this case is that it appears to me that, usually, potential for rehabilitation is not in issue until and unless the defense raises it during the sentencing proceedings. Conceivably, evidence offered on the merits might in some way suggest that an accused could be readily rehabilitated; such a situation, however, would be quite extraordinary. As we *165put it in United States v. Aurich, 31 MJ 95, 96 n.* (CMA 1990), “[W]e believe it to be the rare case where it is necessary for the Government to introduce such opinions unless the accused places such potential in issue.”
Thus, I conclude that, on grounds of relevance and notwithstanding the relative location of RCM 1001(b)(5) mentioned earlier, testimony — whether from the commanding officer or anyone else — as to an accused’s lack of potential for rehabilitation should be excluded until rebuttal.* Obviously, under my view, it is unnecessary to reach the concerns expressed by this Court in Ohrt and by the court below in this case concerning the meaning that a sentencing authority would give to testimony from a commanding officer that an accused does not have rehabilitative potential.
With respect to the other issues decided by this Court, I agree fully with the lead opinion. As to the concerns expressed by the Court of Military Review about Claxton’s “no pay” status, see 29 MJ at 670 n.l, I am convinced that this status had no effect on the jurisdiction of the court-martial. However, termination or withholding of the accused’s pay does raise some issues that can properly be litigated at the sentence rehearing or in the United States Claims Court. See Keys v. Cole, 31 MJ 228, 234 (CMA 1990).
The only exception would be if the military judge allowed the Government to present such evidence initially as a matter of convenience for witnesses after ascertaining that the defense would be claiming that the accused has rehabilitation potential.